Loftus et al v. Doe et al

Filing 92

MEMORANDUM OPINION AND ORDER: 1) Deft's motion for summary judgment on all claims made by the Pltfs 80 is GRANTED; 2) Pltfs' motion for summary judgment on all of Deft's counterclaims 79 is also GRANTED; 3) Pltfs' motion for leave to file a second amended complaint 89 is DENIED; 4) A judgment will enter concurrently therewith; 5) The parties shall bear their own costs. Signed by Judge William O. Bertelsman on 5/13/2014. (ECO)cc: COR

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT COVINGTON
CIVIL ACTION NO. 10-279(WOB-JGW)
M.D. JEAN M. LOFTUS
AND
LOFTUS PLASTIC SURGERY CENTER
VS.

PLAINTIFFS

MEMORANDUM OPINION AND ORDER

CATHERINE NAZARI a/k/a/
CATHERINE NAZARIFROSHANI

DEFENDANT

This is an unusual libel case in which a doctor has sued her
patient.

The patient posted comments on opinion websites complaining

of the results of surgery the doctor had performed on her.
The doctor asserts claims for defamation and tortious business
interference.
civil

The patient herself counterclaims for wrongful use of

proceedings,

invasion

of

privacy,

infliction of emotional distress.

defamation

and

intentional

Each party seeks compensatory and

punitive damages against the other.

Each party has filed for summary

judgment against the other.
I.

FACTS

The plaintiffs are Dr. Jean Loftus, M.D., a plastic surgeon, and
the professional corporation under the aegis of which she practices.
The

defendant

underwent

is

plastic

Catherine
surgery

Nazari,
by

her

a
in

patient
2006,

of

Dr.

consisting

Loftus,
of

who

breast

implants, a breast lift, an arm lift on both arms, and a “tummy tuck.”
In 2010, Ms. Nazari posted three statements on opinion websites
complaining of the results of the surgery.

These postings, quoted in

full, are as follows:
A posting on http://www.vitals.com that read:

I had Plastic surgery done by Dr. Jean Loftus only to be
left with permanent nerve damage in both arms (arm lift)
severe abdominal pain (tummy tuck) horrible scars and
disfigured in both breast [sic] (breast implants, breast
lift)as [sic] a result of her mistakes. As a result of the
surgeries preformed [sic] by Dr. Loftus I was left having
to file for Total Disability.
To err is human, but she
like all doctors should be held accountable for their
actions. Where are the ethics in America when Doctors cover
up for Doctors knowing that horrible mistakes were made? I
hope that she can live with herself knowing what she has
done. Doc. 87, Def. Depo., p. 15; Doc. 87-6 (ex. 4).
A posting on http://www.newsvine.com that read:
I had plastic surgery due too [sic] losing a lot of weight
and was not happy with the sagging skin I was left with. I
thought that if I had the surgery It would raise my self
confiedence [sic] and improve my appearance. If I could go
back in time, I would not have done it.
I had breast
implants and a Breast lift and was left with horrible scars
and disfigurement, a tummy tuck that left me with severe
abdominal pain that is still present today, I had arm [sic]
lift in both arms that caused permanent nerve damage in
both arms and there [sic] nothing that a consumer can do.
All of my surgeries were preformed [sic] the same day by a
Dr. Jean Loftus in Ft. Wright, KY.
99% of all medical
malpractice cases never make it to a hearing, let alone a
trial.
I have filed complaints with the US Attorney in
Washington, DC and they referred me to the Ohio Medical
Board to file a complaint. I also filed a lawsuit with Bob
Handleman in Columbus, OH only to have nothing done and my
case was dismissed without prejudice. On October 22, 2010
I received a letter from the Ohio Medical Board that NO
disciplinary actions would be taken regarding Dr. Loftus. I
guess it is true what Ralph Nader says on his site, that
State Medical Boards are like FOXES GUARDING THE HENS.
These doctors should be held accountable for their mistakes
and not be covered up.
Doc. 87, Def. Depo., pp. 15-16;
Doc. 87-8 (ex. 6).
A posting on the website http://www.buskia.com that read:

I had plastic surgery done by Dr. Jean Loftus of Ft.
Wright, KY only to be left with permanent nerve damage in
both arms (arm lift), severe abdominal pain (tummy tuck)
and horrible scars and disfigurement on both breasts
(breast implants and breast lift)., [sic] and my medical
records were stolen from a friend and colleague of hers,
Dr. Rank O. Dawson a plastic surgeon of Cincinnati, OH. I
filed a complaint with the Ohio Medical Board and nothing
was done. I had an attorney from Columbus, OH Mr. Bob
Handleman and he did nothing.
My case was dismissed
without prejudice . [sic]
I was told by several lawyers
that 99% of medical malpractice cases never even make it to
trial or even a hearing… so if you don’t have lots of
money… your [sic] wasting your time. Doc. 87, Def. Depo.,
p. 15; Doc. 87-7 (ex. 5).
To facilitate discussion, these postings may be broken down in
essence to the following assertions:
1.
which

she

Ms. Nazari suffers from scars, disfigurements, and pain,
attributes

to

Dr.

Loftus’s

improperly

performing

the

surgery.
2.

Ms. Nazari filed a malpractice action and a complaint with

the Ohio Medical Board which came to naught.
3.

Ms.

Nazari

states

that

making

such

filings

are

useless

because the system is rigged against complaining patients, and there
is a conspiracy among the medical profession, the court system and
regulatory bodies.
4.
II.

Her medical records were stolen.
DR. LOFTUS AND THE LOFTUS MEDICAL GROUP’S CLAIMS
A. DEFAMATION

In an action by a private person against a private person, as in
this case, the elements to sustain a cause of action for defamation
include: (1) defamatory (false) language; (2) about the plaintiff; (3)

which

is

published;

and

(4)

which

causes

injury

to

reputation.

Stringer v. Wal-Mart Stores, Inc., 151 S.W.3d 781, 793 (Ky. 2004).
Allegations about a physician’s ability to do her job are defamatory
per se, and the falsity of such statements is presumed.

Columbia

Sussex Corp., Inc. v. Hay, 627 S.W.2d 270, 273 (Ky. App. 1982).
An expression of opinion may be defamatory, but it is “actionable
only if it implies the allegation of undisclosed defamatory facts as
the basis for the opinion.”
(Ky.

1989)

(quoting

Yancey v. Hamilton, 786 S.W.2d 854, 857

RESTATEMENT

(SECOND)

TORTS

OF

§566

(1977)).

“[S]tatements of pure opinion, hyperbole, or rhetorical exaggeration
will receive First Amendment protection.” Ogle v. Hocker, 279 F. App'x
391, 397 (6th Cir. 2008) (citing Jolliff v. N.L.R.B., 513 F.3d 600,
610 (6th Cir. 2008)).
In Lassiter v. Lassiter, 456 F. Supp. 2d 876 (E.D. Ky. 2006),
aff’d,

280

F.

App’x

503

(6th

Cir.

2008),

this

Court

extensively

reviewed the opinion doctrine in Kentucky defamation actions.
discussion is adopted by reference here.

That

The bottom line is protected

opinion exists if “[t]he reader is in as good a position as the author
to judge whether the conclusion . . . [i]s correct.”

Id. at 882.

In the case at bar, it may be seen that all of Ms. Nazari’s
statements concerning the allegedly poor results of her surgery are
protected

opinion,

undisclosed facts.

because

they

do

not

the

result

of

the

existence

of

Basically, she says she had the surgery, and she

has the unfortunate conditions described.
are

imply

the

surgery,

which

Also, in her opinion, they
--

also

involved negligence on the part of Dr. Loftus.

in

her

opinion

--

These are all the

facts she adduces; she does not imply the existence of any undisclosed
facts.

The reader of the postings may decide for himself or herself

whether the opinions should be accepted, or are an example of the
logical fallacy known as post hoc ergo propter hoc.1
The statements concerning the futility of suing doctors or filing
complaints

against

them

opinion.

Moreover,

before

they

are

regulatory
not

“of

boards

and

are

also

concerning”

clearly

Dr.

Loftus.

Neither is the statement about stolen records.
Further, it must be taken into account that the statements by Ms.
Nazari

were

posted

on

opinion

websites;

therefore,

tendency would be to infer that they are opinion.

the

natural

Cf. Seaton v.

TripAdvisor, LLC, 728 F.3d 592 (6th Cir. 2013).
Dr. Loftus’s proffer of medical experts rebutting Ms. Nazari’s
assertions is irrelevant; her statements are still protected opinion.
Dr. Loftus argues that Ms. Nazari’s derogatory remarks about the
medical profession should be interpreted as statements about her, but
a member of a class has no claim against someone defaming the class as
a whole.

RESTATEMENT (SECOND) OF TORTS §564A (1977); O'Brien v. Williamson

Daily News, 735 F. Supp. 218, 223 (E.D. Ky. 1990), aff’d, 931 F.2d 893
(6th Cir. 1991).
B. INTERFERENCE WITH BUSINESS RELATIONS
Dr. Loftus and the Loftus Medical Group assert a claim against
Ms.
1

Nazari

for

tortious

interference

with

prospective

business

“after which, therefore because of which”. For example, the ancient
mariner shot the albatross and later the wind died and the ship was
becalmed; therefore, the crew inferred the wind died because he shot
the albatross. The same conclusion applies to Ms. Nazari’s assertion
that she had to take disability as a result of the surgeries.

relationships.
embodying

it

Kentucky recognizes this type of claim, but the cases
are

relatively

few

and

none

are

in

point

with

the

situation now before the Court.
The lead Kentucky case is National College Athletic Assn. v.
Hornung, 754 S.W.2d 855 (Ky. 1988), in which the Court adopted the
parameters set forth in RESTATEMENT (SECOND) OF TORTS, §§776, 767 and 773
concerning this tort.

See also Harstad v. Whiteman, 338 S.W.3d 804

(Ky. App. 2011).
This Court believes the principles found in the Restatement, as
adopted by the Kentucky courts, require the conclusion that this tort
is not applicable to the present situation.
The Restatement §767 states:
In determining whether an actor's conduct in intentionally
interfering with a contract or a prospective contractual
relation of another is improper or not, consideration is
given to the following factors: (a) the nature of the
actor's conduct, (b) the actor's motive, (c) the interests
of the other with which the actor's conduct interferes, (d)
the interests sought to be advanced by the actor, (e) the
social interests in protecting the freedom of action of the
actor and the contractual interests of the other, (f) the
proximity or remoteness of the actor's conduct to the
interference and (g) the relations between the parties.
Comment
fraudulent

c,

concerning

representations

misrepresentation,
are

“ordinarily

a

states

that,

wrongful

while

means

of

interference and makes an interference improper,” for purposes of this
tort, “[a] representation is fraudulent when, to the knowledge and
belief

of

its

utterer,

it

is

false

in

the

intended to be understood by its recipient.”

sense in

which

it

is

Id. at §767 cmt. c.

There is no evidence that Ms. Nazari did not honestly believe the
opinions she set forth in the various postings she made.

Also, under the Restatement, the court must consider “the social
interests in protecting the freedom of action of the actor and the
contractual interests of the other.”

Id. at §767(e).

above,

protected

the

posts

by

Ms.

Nazari

are

from

As described
liability

for

defamation, because they constitute opinion, which is a form of free
expression.

In the view of this Court, the same social interests

apply here.

In the present internet age, the opinions of the public

are sought by online news media, and all manner of websites, some of
which

exist

solely

to

provide

a

forum

for

the

opinions.

The

expression these opinions have at least some social utility, although
they are not absolutely privileged under the principles of defamation.
See Seaton v. TripAdvisor, LLC, 728 F.3d 592 (6th Cir. 2013).
In TripAdvisor, the Sixth Circuit, applying Tennessee law, held
that

where

an

action

for

interference

with

prospective

business

relationship relies on a defamatory posting as the instrument of such
interference, the prospective relationship count fails if the posting
was protected opinion.

728 F.3d at 603.

III.

MS. NAZARI’S COUNTERCLAIMS
A. DEFAMATION

Ms. Nazari’s defamation counterclaim is based upon her allegation
that Dr. Loftus revealed her personal medical information to third
parties.

Ms.

Nazari

deposed

the

only

individual

with

knowledge of the alleged incident, who refuted this story.
Boland Depo, pp. 20-21.
support her allegation.

personal

Doc. 79-9,

She did not depose any other witness to
Summary judgment for the plaintiffs on this

counterclaim is therefore proper.

B. INVASION OF PRIVACY
Ms. Nazari’s counterclaim for invasion of privacy is based upon
the same facts as her defamation claim.

The right of privacy is

invaded by: (1) unreasonable intrusion upon the seclusion of another;
(2) appropriation of the other’s name or likeness; (3) unreasonable
publicity given to the other’s private life; or (4) publicity that
unreasonably places the other in a false light before the public.
Smith v. Bob Smith Chevrolet, Inc., 275 F. Supp. 2d 808, 821 (W.D. Ky.
2003).

Here, only ground (1) is claimed.

Ms. Nazari started this

controversy by posting comments about her surgeries on the internet,
and there is no proof in the record to support her claim that Dr.
Loftus

revealed

parties.

With

information
no

record

about

her

medical

evidence

to

support

records
this

to

third

counterclaim,

summary judgment for the plaintiffs is proper.
C. WRONGFUL USE OF CIVIL PROCEEDINGS2
(MALICIOUS PROSECUTION)
The elements of wrongful use of civil proceedings are: (1) the
institution or continuation of original judicial proceedings, either
civil or criminal, or of administrative or disciplinary proceedings;
(2) by, or at the instance, of the plaintiff; (3) the termination of
such proceedings in defendant's favor; (4) malice in the institution
of

such

proceeding;

want

or

the

suffering

lack
of

of

probable

damage

as

a

cause

for

the

result

of

the

proceeding;

and

proceeding.

D’Angelo v. Mussler, 290 S.W.3d 75 (Ky. Ct. App. 2009).

2

(6)

(5)

Ms. Nazari bases this claim on the alleged lack of probable cause in
instituting this lawsuit.

The existence vel non of probable cause is a matter of law for
the Court.

Here, Dr. Loftus did have probable cause although her

claims have been unsuccessful.
Ms. Nazari has not adduced evidence of lack of probable cause or
malice

in

the

doctor’s

instituting

this

proceeding.

Rather,

Ms.

Nazari merely argues that “Plaintiff is aware that Ms. Nazari has made
no such defamatory statements about her but rather has shared her
negative experience . . .”
Summary Judgment, p. 8.

Doc. 82, Def. Opp. to Pl. Motion for

Plaintiffs are therefore entitled to summary

judgment on this counterclaim.
D. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
Intentional infliction of emotional distress is established by
satisfying

four

intentional

or

elements:
reckless;

(1)
(2)

the

the

wrongdoer’s

conduct

must

conduct
be

must

outrageous

be
and

intolerable in that it offends the generally accepted standards of
decency and morality; (3) there must be a causal connection between
the

wrongdoer’s

conduct

and

the

emotional

distress;

and

(4)

the

emotional distress must be severe. Stringer v. Wal-Mart Stores, Inc.,
151 S.W.3d 781, 788 (Ky. 2004). Plaintiffs’ instituting this lawsuit
fails to rise to the level of outrageous and intolerable conduct.
Thus,

plaintiffs

are

entitled

to

summary

judgment

on

this

counterclaim.
IV.

DR. LOFTUS AND THE LOFTUS MEDICAL GROUP’S MOTION TO FILE AN
ADDITIONAL AMENDED COMPLAINT
Dr.

Loftus

and

the

Loftus

Medical

Group

seek

to

file

an

additional amended complaint alleging additional postings they deem
defamatory.

The additional postings complained of are subject to the

same protected opinion analysis as described above.

Therefore, the

motion will be denied.
Therefore,

having

heard

the

parties,

and

the

Court

being

sufficiently advised,
IT IS ORDERED THAT:
(1) Defendant’s motion for summary judgment on all claims made by
the Plaintiffs (Doc. 80) is GRANTED.
(2) Plaintiffs’ motion for summary judgment on all of Defendant’s
counterclaims (Doc. 79) is also GRANTED.
(3) Plaintiffs’

motion

for

leave

to

file

a

complaint (Doc. 89) is DENIED.
(4) A judgment will enter concurrently therewith.
(5) The parties shall bear their own costs.
This 13th day of May, 2014.

second

amended